Employer Information Bulletin 99-03 Business Visitor Activities (6/00) UNITED STATES DEPARMENT OF JUSTICE IMMIGRATION AND NATURALIZATION SERVICE Office of Business Liaison Public inquires: Employer hotline 800-357-2099 Fax 202-305-2523 Email office.business.liaison@usdoj.gov Public information: Fax-on-demand 202-514-2033 Order INS Forms 800-870-3676 Website www.usdoj.gov/ins/ B-1 ELIGIBILITY PERMISSIBLE ACIVITIES FOR B-1 BUSINESS VISITOR B-1 classification applies when a foreign employer 1 requires an alien employee to work temporarily in the United States (US) pursuant to the foreign employer s international transactions. It does not entitle business visitors to enter the US labor market meaning employment activities that are domestic in nature and/or positions that are generally filled on a competitive basis within the US pool of authorized citizen, lawful permanent resident, and nonimmigrant workers. A US employer may not employ a business visitor in the US. However, a B-1 business visitor may be permitted to perform services on the premises of a US company if pursuant to an international business relationship between that US company and his/her foreign employer. FACTORS CONSIDERED An alien is classifiable as a visitor for business if he or she overcomes that presumption of intending immigration, qualifies under the provisions of section 101(a)(15)(B) of the immigration and Nationality Act, and establishes all of the following:! intends to leave the US at the end of the temporary stay! has permission to enter a foreign country at the end of the temporary stay! seeks admission for the sole purpose of engaging in legitimate activities relating to business, evidenced by employment in the US will not be necessary! has compelling ties to the business sponsor! has a residence abroad that he or she does not intend to abandon! the function he or she will perform in the US is a necessary incident to international trade or commerce (i.e. not limited to businessmen ). COMPENSATION B-1 nonimmigrants may not receive salaries or other remuneration from US sources for services rendered in connection with activities in the US. A US source, however, may provide these aliens with expense allowances or reimbursement for expenses incidental to their temporary stays. 1 The business visitor may be self-employed abroad.
Honoraria: In common parlance, the term honorarium may refer to compensation for services, reimbursable or per diem expenses, or both. Under immigration law, however, honorarium payments 2 to B-1 business visitors are restricted to persons whose actual place of accrual of profits from services rendered is abroad and must not exceed the relative cost of living in the US 3. Note: See below for discussion of special rules relation to lecture serves for US academic and not-profit research institutions B-1 ADMISSION AND EXTENSION OF STAY A B-1 business visitor will be admitted into the US for a period of time that is fair and reasonably necessary in order to accomplish the stated business purpose of the trip. A B-1 principal and B-2 dependents may apply for extensions of stay on Form I-539. Extensions are granted in increments of no more than six months. BUSINESS VISITOR ACTIVITIES Functions or circumstances that have been determined to be acceptable as B-1 business activities include but are not limited to:! commercial transactions that do not involved gainful US employment (e.g. taking orders for foreign goods) contract negotiation! installation, service, or repair of commercial/industrial equipment purchased from outside the US and/or training of US workers to perform such services. Note: typically, contract of sale requires seller to provide such services and B-1 visitor possesses specialized knowledge essential to contract performance consultation with business associates.! litigation! participation in scientific, educational, professional or business conventions, conferences, or seminars! professional entertainers involved in cultural events, paid for and sponsored by a sending country, that will involve public appearance before non-paying audiences 4! investors seeking investments that may eventually qualify them for immigrant or E-2 nonimmigrant status! independent research or professional artistic activity (e.g. music recording, artistic work such as painting, sculpture, or photography) that do not involved income from an US source 2 But see Lecturing and Short Term Academic Activity below. 3 Incidental expenses should not exceed the actual and reasonable expenses that the business visitors incur in traveling to and from the event, together with living expenses the alien reasonable incurs for means, lodging, and other basic services. 4 Other than under this exception, entertainers and associated production personnel are not entitled to B-1 status.
! foreign airline employees who meet E visa criteria but are not nationals of a treaty country or of the airlines country of nationality! planning, constructing, dismantling, maintaining or other employment by foreign employer in connection with exhibits at international fairs and exhibitions! certain religious and charitable activities (e.g. missionaries and recognized international volunteer efforts)! certain athletes who: - are professional but intend to receive no salary or payment their than prize money - are individuals or members of a foreign-based team in an internationally recognized sporting activity whose principal place of business is in the foreign country where their salaries typically accrue and seek to enter pay only their incidental expenses! servants employed 5 abroad of: - US citizens residing abroad who return or are assigned to the US on a temporary basis - Foreign nationals who have been accorded B, E, F, H, I, J, L, M, O, P, R or TN nonimmigrant status for temporary activities in the US LECTURING OR SHORT-TERM ACADEMIC ACTIVITY 6 The American Competitiveness and Worksite Improvement Act (ACWIA) of 1998 authorized B classification visitors, performing lecture and seminar services for US nonprofit research and higher education and higher education institution, to receive honoraria (compensation for services, in addition to reimbursement for expenses). Certain restrictions apply. Although this legislative provision has net been formally implemented via regulation, INS issued field guidance dated 11/30/99 clarifying that nonimmigrants will be admitted under B classification for compensated academic activities qualifying under ACWIA and, by implication, that B visitors who perform qualifying services in exchange for honorarium payments do not breach their status. Note: Under existing regulations, and alien professional who will lecture or provide short-term academic, cultural, etc. services at a US institution must be admitted in H-1B, H-2B, or O-1 status in order to be paid for such activities; that make a business visitor whole for participating in a function or event. B-2 status supports such activities where business visitors give brief, impromptu presentations as an incidental part of US visits but are not subsidized, in whole or in part, by US institutions. At this time, it remains unclear, in spite of INS 11/99-field guidance, whether visas will be issued to compensated B lecturers or whether SSA will issue SSN s to them for tax reporting purposes. 5 Source of payments to servants who meet these criteria is not relevant. 6 See footnote 1.
VOLUNTEER ACTIVITIES Generally, volunteers do not meet the regulatory definition of employee. Volunteer work may be acceptable in nonimmigrant visitor status if the services are undertaken without expectation of compensation, benefits, or privileges. However, the fact that an employee is unpaid will not cure unlawful employment if the volunteer is otherwise indistinguishable from a regular paid employee. Additional factors to consider in a given case may include the benefit derived from the volunteer services by the US organization and/or whether a lawfully authorized US worker would have been hired but for the volunteer services. TRAINNING IN B-1 STATUS Individuals who would otherwise qualify for H-3 classification may be eligible for B-1 classification if they receive no salary or other remuneration (i.e. payment beyond expenses). Alien trainees who seek merely to observe the conduct of business or other professional or vocational 7 activity may qualify for B-1 or B-2 classification if the US business does not pay or reimburse expenses. The foreign employer 8 must continue to be the principal employer and pay wages, salary, and/or other compensation from a source abroad. Note about practical experience training: Hands-on training, deigned to provide onthe-job experience, is not deemed to fall within the B-1 (or B-2) classification. Even if the foreign employers pays salary and expenses, B-1 classification is inappropriate if the hands-on services performed by the trainee will benefit the US-based company and/or the US-based company would have had to hire an employee but for the services of the alien trainee. ENTERTAINERS 9 Regardless of the amount or source of compensation or whether the services will involve public appearance, entertainers are generally inadmissible to the US under the B-1 classification. Exceptions: Aliens otherwise classifiable as H-1b nonimmigrants are admissible under the B-1 classification if participating in cultural programs sponsored by the home country government. Canadian or Mexican nationals participating at US border areas in longestablished religious festivals/ceremonies or binational civic celebrations also qualify. ACCEPTABLE B-2 (VISITOR FOR PLEASURE) ACTIVITIES 7 Includes foreign medical doctors, who are not required to have passed the Foreign Medical Graduate Examination. 8 Foreign affiliates of US companies are acceptable. 9 Includes performing artists and production personnel.
Individuals in B-2 status are not restricted to tourist activity or social visits. Other permissible activities include, but are not limited to: - medical treatment - participation in conferences, conventions, etc. of social or fraternal organizations - short courses of study incidental to tourist or social activities - amateur entertainers or athletes who will compete or perform in a nonprofit context, without payment except for expenses BUSINESS VISTORS ACTIVITES UNDER NAFTA 10 General NAFTA did not change the regulations regarding admission of B-1 business visitors. Although NAFTA does not provide separate B-1 rules, however, it facilitates the temporary entry of Canadian and Mexican citizens on a reciprocal basis. Appendix 1603.A.1 to NAFTA Annex 1603 lists the following categories of business visitor activities: Research and Design Distribution Growth, Manufacture, and Production Sales Marketing After-sales Service General Services Although the list of permissible business visitor activities overlaps the list of activities in which any business visitor may engage, there are some significant differences. Under NAFTA, after-sales service contracts are permissible for the life of the warranty or service agreement, i.e. not limited to one year from the date of the service contract. In addition, self-employed persons (e.g. consultants) may enter the US as business visitors as long as they are not paid from US sources, have principal places of business and earn profits abroad, and their work products are primarily created abroad. TN-eligible Canadian or Mexican citizens whose professions appear on NAFTA Appendix 1603.D.1 may be admitted under the B-1 classification as long as they receive no salary or remuneration from a US source, their principal place of employment and earning of business profits remains outside the US, and their US business activities are international in scope. NAFTA does not permit Canadian and Mexican professionals to work in the US as business visitors by remaining on the payroll of their foreign employer. To become part of the US labor market, they must be admitted under a nonimmigrant classification (e.g. treaty national, TN ) that permits employment in the US. Period of Stay 10 See also Employer Bulletin entitled Employing Mexican and Canadian Professionals Under NAFTA, available from this office.
Canadian or Mexican business visitors who present the required documentation will generally be admitted for the requested period of stay up to a maximum of one year. Canadian Business Visitors No visa or Form I-94 Arrival Departure Record is necessary for Canadians (I-94 s may be issued upon request). Upon entry into the US, Canadian business visitor must present proof of Canadian citizenship, description of the business purposes of their trips, and evidence that their business purposes conform both to NAFTA Appendix 1603.A.1 and to general B-1 visitor restrictions relating to compensation, principal place of business, international scope of work, etc. Canadian nationals who enter the US for acceptable business visitor purposes three or more times per year may be eligible for the INSpass 11 and PORTPASS programs that facilitate entry. Mexican Business Visitors Mexicans require B-1 visas from a US consulate or Border Crossing Cards. In addition, upon entry into the US, Mexican business visitors must present descriptions of the business purposes of their trips and evidence that these business purposes conform both to NAFTA Schedule 1 and to general B-1 visitor restrictions relating to compensation, principal place of business, international scope of work, etc. Note about Border Crossing Card limitations: Border Crossing Cardholders are restricted to visits of 72 hours or less within 25 miles of the border. Mexican business visitors with Border Crossing Cards or nonimmigrant visas, who seek to stay longer than 72 hours and travel within any of the 50 states, must obtain I-94 Arrival-Departure Records stamped at points of entry. The Form I-94 replaces the Mexican Border Visitors Permit (Form I- 444), which was required through March 31. 1997, for business travel of up to 30 days within the five southern border states (CA, NV, AZ, NM, TX) 11 See employer Bulletin on the INSpass and PORTpass programs, available from the office.
9 FAM 41.31 NOTES (CT:VISA-1801; 02-09-2012) (Office of Origin: CA/VO/L/R) 9 FAM 41.31 N1 TEMPORARY VISITORS (CT:VISA-1365; 10-29-2009) Factors to be used in determining entitlement to Temporary Visitor Classification are as follows: (1) In determining whether visa applicants are entitled to temporary visitor classification, you (the consular officer) must assess whether the applicants: (a) (b) (c) Have a residence in a foreign country, which they do not intend to abandon; Intend to enter the United States for a period of specifically limited duration; and Seek admission for the sole purpose of engaging in legitimate activities relating to business or pleasure. (2) If an applicant for a B1/B2 visa fails to meet one or more of the above criteria, you must refuse the applicant under section 214(b) of the INA. (See 9 FAM 40.7 for a complete discussion on Refusals Under Section 214(b)). 9 FAM 41.31 N2 RESIDENCE ABROAD 9 FAM 41.31 N2.1 Residence Defined (CT:VISA-1365; 10-29-2009) The term residence is defined in INA 101(a)(33) as the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent. This does not mean that an alien must maintain an independent household in order to qualify as an alien who has a residence in a foreign country and has no intention of abandoning. If the alien customarily resides in the household of another, that household is the residence in fact. NOTE: Only the following visa categories are subject to residence abroad 9 FAM 41.31 Notes Page 1 of 32
requirements: B, F, H (except H-1), J, M, O-2, P, and Q. When adjudicating this requirement, it is essential to view the requirement within the nature of the visa classification. 9 FAM 41.31 N2.2 Intent to Establish Residence Abroad The residence in a foreign country need not be the alien s former residence. For example, an alien who has been living in Germany may meet the residence abroad requirement by showing a clear intention to establish a residence in Canada after a temporary visit in the United States. 9 FAM 41.31 N2.3 Mere Suspicion Not a Reason for Refusal (CT:VISA-1034; 09-24-2008) Suspicion that an alien, after admission, may be swayed to remain in the United States because of more favorable living conditions is not a sufficient ground to refuse a visa as long as the alien s current intent is to return to a foreign residence. 9 FAM 41.31 N3 TEMPORARY PERIOD OF STAY 9 FAM 41.31 N3.1 Period of Time in United States Consistent with Purpose of Trip The period of time projected for the visit must be consistent with the stated purpose of the trip. The applicant must establish with reasonable certainty that departure from the United States will take place upon completion of the temporary visit. Although temporary is not specifically defined by either statute or regulation, it generally signifies a limited period of stay. The fact that the period of stay in a given case may exceed six months or a year is not in itself controlling, provided that you are satisfied that the intended stay actually has a time limitation and is not indefinite in nature. 9 FAM 41.31 N3.2 Specific and Realistic Plans 9 FAM 41.31 Notes Page 2 of 32
The applicant must have specific and realistic plans for the entire period of the contemplated visit. 9 FAM 41.31 N3.3 Evaluating Cases In evaluating these cases, you should not focus on the absolute length of the stay, but on whether the stay has some finite limit. For example, the temporariness requirement would be met in a case where the cohabitating partner will accompany, and depart with, the "principal" alien on a two-year work assignment or a four-year degree program. 9 FAM 41.31 N3.4 Ties Abroad The applicant must demonstrate permanent employment, meaningful business or financial connections, close family ties, or social or cultural associations, which will indicate a strong inducement to return to the country of origin. 9 FAM 41.31 N3.5 Doubtful Cases not Resolved by Offer to Leave Dependent Abroad If you doubt an alien s intent to return abroad, the alien cannot satisfy your doubts by offering to leave a child, spouse, or other dependent abroad. 9 FAM 41.31 N4 LEGITIMATE ACTIVITIES RELATING TO BUSINESS OR PLEASURE 9 FAM 41.31 N4.1 Unlawful Activity While in Visitor Status (CT:VISA-1753; 10-21-2011) The law contemplates that an alien is traveling to the United States for legal purposes. Therefore, an application for a visitor visa must be denied in those cases where you have reason to believe or know that, while in the United States as a visitor, the applicant will engage in unlawful or criminal activities. 9 FAM 41.31 Notes Page 3 of 32
9 FAM 41.31 N4.2 Adequate Funds to Avoid Unlawful Employment The arrangements which the applicant has made for defraying the expenses of his or her visit and return abroad must be adequate in order to prevent their obtaining unlawful employment in the United States. 9 FAM 41.31 N5 IMPORTANCE OF FACILITATING INTERNATIONAL TRAVEL (CT:VISA-1753; 10-21-2011) a. The policy of the U.S. Government is to facilitate and promote international travel and the free movement of people of all nationalities to the United States both for the cultural and social value to the world and for economic purposes. b. You should expedite applications for the issuance of a visitor visa if the issuance is consistent with U.S. immigration and naturalization laws and regulations. You must be satisfied that the applicants have overcome the presumption of intending immigration. You should give particular attention to applicants traveling to the United States to attend conferences, conventions, or meetings on specific dates. 9 FAM 41.31 N6 CHOICE OF CLASSIFICATION 9 FAM 41.31 N6.1 Principal Purpose of Admission (CT:VISA-767; 08-30-2005) An alien desiring to come to the United States for one principal, and one or more incidental purposes, should be classified in accordance with the principal purpose. For example, you should classify an alien seeking to enter the United States as a student who desires, prior to entering an approved school, to make a tourist trip of not more than 30 days within the United States, as F-1 or M-1. Also, when a family member s primary purpose to come to the United States is to accompany the principal, the classification of the accompanying family member is either of a derivative of the principal if the classification provides or as a B-2, if not. This is the case even if the accompanying family member decides to attend school. (See 9 FAM 41.11 N5.2.) 9 FAM 41.31 Notes Page 4 of 32
9 FAM 41.31 N6.2 Choice When More Than One Classification Possible When it appears that an alien can properly be classified under two or more nonimmigrant classifications, you should explain to the alien the terms and requirements of each, including documentary requirements, maximum lengths of stay which may be authorized upon admission, and any other pertinent factors. You should then base the classification of the visa on the alien s stated preference. (See Visa Reciprocity and Country Documents Finder.) 9 FAM 41.31 N6.3 Prohibition on Alternative to A and G Classification The provisions of 22 CFR 41.22(b) relating to the A and G classifications are always controlling. You should not suggest alternative classifications. 9 FAM 41.31 N7 ALIENS TRAVELING TO UNITED STATES AS VISITORS FOR BUSINESS (CT:VISA-1599; 10-28-2010) a. Aliens who desire to enter the United States for business and who are otherwise eligible for visa issuance, may be classifiable as nonimmigrant B-1 visitors provided they meet the criteria described in 9 FAM 41.31 N8 through 9 FAM 41.31 N11. Engaging in business contemplated for B-1 visa classification generally entails business activities other than the performance of skilled or unskilled labor. Thus, the issuance of a B-1 visa is not intended for the purpose of obtaining and engaging in employment while in the United States. Specific circumstances or past patterns have been found to fall within the parameters of this classification and are listed below. b. It can be difficult to distinguish between appropriate B-1 business activities, and activities that constitute skilled or unskilled labor in the United States that are not appropriate on B status. The clearest legal definition comes from the decision of the Board of Immigration Appeals in Matter of Hira, affirmed by the Attorney General. Hira involved a tailor measuring customers in the United States for suits to be manufactured and shipped from outside the United States. The decision stated that this was an appropriate B-1 activity, because the principal place of business and the actual place of accrual of profits, if any, was in the foreign 9 FAM 41.31 Notes Page 5 of 32
country. Most of the following examples of proper B-1 relate to the Hira ruling, in that they relate to activities that are incidental to work that will principally be performed outside of the United States. c. You may encounter a case involving temporary employment in the United States, which does not fall within the categories listed below. You should submit such cases to the Advisory Opinions Division (CA/VO/L/A) of the Visa Office in accordance with the procedures in 9 FAM 41.31 N12 for an advisory opinion (AO) to ensure uniformity and proper application of the law. 9 FAM 41.31 N8 ALIENS TRAVELING TO UNITED STATES TO ENGAGE IN COMMERCIAL TRANSACTIONS, NEGOTIATIONS, CONSULTATIONS, CONFERENCES, ETC. Aliens should be classified B-1 visitors for business, if otherwise eligible, if they are traveling to the United States to: (1) Engage in commercial transactions, which do not involve gainful employment in the United States (such as a merchant who takes orders for goods manufactured abroad); (2) Negotiate contracts; (3) Consult with business associates; (4) Litigate; (5) Participate in scientific, educational, professional, or business conventions, conferences, or seminars; or (6) Undertake independent research. 9 FAM 41.31 N9 ALIENS COMING TO UNITED STATES TO PURSUE EMPLOYMENT INCIDENTAL TO THEIR PROFESSIONAL BUSINESS ACTIVITIES The statutory terms of INA 101(a)(15)(B) specifically exclude from this classification aliens coming to the United States to perform skilled or unskilled labor. Aliens coming to the United States for the purpose of 9 FAM 41.31 Notes Page 6 of 32
pursuing employment which does not qualify them for A, C, D, E, G, H, I, J, L, O, P, Q, or NATO status must be classified as immigrants. Exception is made for aliens who may be eligible for B-1 business visas provided they meet the criteria of one of the categories listed below. 9 FAM 41.31 N9.1 Members of Religious and Charitable Activities 9 FAM 41.31 N9.1-1 Ministers on Evangelical Tour (CT:VISA-1365; 10-29-2009) Ministers of religion proceeding to the United States to engage in an evangelical tour who do not plan to take an appointment with any one church and who will be supported by offerings contributed at each evangelical meeting. (See 9 FAM 41.113 PN14.2.) 9 FAM 41.31 N9.1-2 Ministers of Religion Exchanging Pulpits Ministers of religion temporarily exchanging pulpits with U.S. counterparts who will continue to be reimbursed by the foreign church and will draw no salary from the host church in the United States. 9 FAM 41.31 N9.1-3 Missionary Work Members of religious denominations, whether ordained or not, entering the United States temporarily for the sole purpose of performing missionary work on behalf of a denomination, so long as the work does not involve the selling of articles or the solicitation or acceptance of donations and provided the minister will receive no salary or remuneration from U.S. sources other than an allowance or other reimbursement for expenses incidental to the temporary stay. Missionary work for this purpose may include religious instruction, aid to the elderly or needy, proselytizing, etc. It does not include ordinary administrative work, nor should it be used as a substitute for ordinary labor for hire. 9 FAM 41.31 N9.1-4 When Applicant Is Unable to Qualify for R Status In cases where an applicant is coming to perform voluntary services for a 9 FAM 41.31 Notes Page 7 of 32
religious organization, and does not qualify for R status, the B-1 status remains an option, provided that the applicant meets the requirements in 9 FAM 41.31 N9.1, even if he or she intends to stay a year or more in the United States. 9 FAM 41.31 N9.1-5 Participants in Voluntary Service Programs (CT:VISA-1034; 09-24-2008) a. Aliens participating in a voluntary service program benefiting U.S. local communities, who establish that they are members of, and have a commitment to, a particular recognized religious or nonprofit charitable organization. No salary or remuneration should be paid from a U.S. source, other than an allowance or other reimbursement for expenses incidental to the volunteers stay in the United States. b. A voluntary service program is an organized project conducted by a recognized religious or nonprofit charitable organization to assist the poor or the needy or to further a religious or charitable cause. The program may not, however, involve the selling of articles and/or the solicitation and acceptance of donations. The burden that the voluntary program meets the Department of Homeland Security (DHS) definition of voluntary service program is placed upon the recognized religious or nonprofit charitable organization, which must also meet other criteria set out in the DHS Operating Instructions with regard to voluntary workers. c. You must assure that the written statement issued by the sponsoring organization is attached to the passport containing the visa for presentation to the DHS officer at the port of entry. The written statement will be furnished by the alien participating in a service program sponsored by the religious or nonprofit charitable organization and must contain DHS required information such as the: (1) Volunteer s name and date and place of birth; (2) Volunteer s foreign permanent residence address; (3) Name and address of initial destination in the United States; and (4) Volunteer s anticipated duration of assignment. 9 FAM 41.31 N9.2 Members of Board of Directors of U.S. Corporation An alien who is a member of the board of directors of a U.S. corporation seeking to enter the United States to attend a meeting of the board or to 9 FAM 41.31 Notes Page 8 of 32
perform other functions resulting from membership on the board. 9 FAM 41.31 N9.3 Personal/Domestic Employees 9 FAM 41.31 N9.3-1 Personal/Domestic Employees of U.S. Citizens Residing Abroad (CT:VISA-1753; 10-21-2011) Personal or domestic employees who accompany or follow to join U.S. citizen employers who have a permanent home or are stationed in a foreign country and who are visiting the United States temporarily. The employer-employee relationship existed prior to the commencement of the employer s visit to the United States, provided that you are satisfied that: (1) The employee has a residence abroad which he or she has no intention of abandoning; (2) The alien has been employed abroad by the employer as a personal or domestic servant for at least six months prior to the date of the employer s admission to the United States; (3) In the alternative, the employer can show that while abroad the employer has regularly employed a domestic servant in the same capacity as that intended for the applicant; (4) The employee can demonstrate at least one year experience as a personal or domestic servant by producing statements from previous employers attesting to such experience; and (5) The employee is in possession of an original contract or a copy of the contract, to be presented at the port of entry, which contains the original signatures of both the employer and the employee. b. The required employment contract has been signed and dated by the employer and employee and contains a guarantee from the employer that, in addition to the provisions listed in item (5) above, the employee will receive the minimum or prevailing wages whichever is greater for an eight hour work-day. The employment contract must also reflect any other benefits normally required for U.S. domestic workers in the area of employment. The employer will give at least two weeks notice of his or her intent to terminate the employment, and the employee need not give more than two weeks notice of intent to leave the employment. 9 FAM 41.31 N9.3-2 Personal/Domestic Employees of U.S. Citizens on Temporary Assignment in United States (CT:VISA-1753; 10-21-2011) 9 FAM 41.31 Notes Page 9 of 32
a. Personal or domestic employees who are accompanying or following to join U.S. citizen employers temporarily assigned to the United States provided you are satisfied that: (1) The employee has a residence abroad which he or she has no intention of abandoning; (2) The alien has been employed abroad by the employer as a personal or domestic servant for at least six months prior to the date of the employer s admission to the United States; (3) In the alternative, the employer can show that while abroad the employer has regularly employed a domestic servant in the same capacity as that intended for the applicant; (4) The employee can demonstrate at least one year experience as a personal or domestic servant by producing statements from previous employers attesting to such experience; and (5) The employee is in possession of an original contract or a copy of the contract, to be presented at the port of entry, which contains the original signatures of both the employer and the employee. b. The U.S. citizen employer is subject to frequent international transfers lasting two years or more as a condition of the job as confirmed by the employer s personnel office and is returning to the United States for a stay of no more than four years. The employer will be the only provider of employment to the domestic employee and will provide the employee free room and board and a round trip airfare as indicated under the terms of the employment contract; and c. The required employment contract has been signed and dated by the employer and employee and contains a guarantee from the employer that, in addition to the provisions listed in item (b) above, the employee will receive the minimum or prevailing wages whichever is greater for an eight hour work-day. The employment contract must also reflect any other benefits normally required for U.S. domestic workers in the area of employment. The employer will give at least two weeks notice of his or her intent to terminate the employment, and the employee need not give more than two weeks notice of intent to leave the employment. 9 FAM 41.31 N9.3-3 Personal Employees of Foreign Nationals in Nonimmigrant Status (CT:VISA-1034; 09-24-2008) A personal or domestic employee who accompanies or follows to join an employer who is seeking admission into, or is already in, the United States in B, E, F, H, I, J, L, M, O, P, or Q nonimmigrant status, must meet the following requirements: 9 FAM 41.31 Notes Page 10 of 32
(1) The employee has a residence abroad which he or she has no intention of abandoning (notwithstanding the fact that the employer may be in a nonimmigrant status which does not require such a showing); (2) The employee can demonstrate at least one year s experience as a personal or domestic employee; (3) The employee has been employed abroad by the employer as a personal or domestic employee for at least one year prior to the date of the employer s admission to the United States; OR If the employee-employer relationship existed immediately prior to the time of visa application, the employer can demonstrate that he or she has regularly employed (either year-round or seasonally) personal or domestic employees over a period of several years preceding the domestic employee s visa application for a nonimmigrant B-1 visa; (4) The employer and the employee have signed an employment contract which contains statements that the employee is guaranteed the minimum or prevailing wages, whichever is greater, and free room and board, and the employer will be the only provider of employment to the employee; (5) The employer must pay the domestic s initial travel expenses to the United States, and subsequently to the employer s onward assignment, or to the employee s country of normal residence at the termination of the assignment. 9 FAM 41.31 N9.3-4 Personal Employees/Domestics of Lawful Permanent Residents (LPRs) Personal employees of all lawful permanent residents (LPRs), including conditional permanent residents and LPRs who have filed a Form N-470, Application to Preserve Residence for Naturalization Purposes, must obtain permanent resident status, as it is contemplated that the employing LPR is a resident of the United States. 9 FAM 41.31 N9.3-5 Source of Payment to B-1 Personal Employees/Domestics The source of payment to a B-1 personal or domestic employee or the place where the payment is made or the location of the bank is not relevant. 9 FAM 41.31 Notes Page 11 of 32
9 FAM 41.31 N9.3-6 Consular Officer Responsibilities in Processing Applications Under the William Wilberforce Trafficking Victims Protection Act (CT:VISA-1753; 10-21-2011) a. The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (WWTVPRA) requires you to ensure that an alien applying for a B-1 nonimmigrant visa (NIV) as a personal or domestic servant accompanying or following to join an employer, is made aware of his or her legal rights under Federal immigration, labor, and employment laws. This includes information on the illegality of slavery, peonage, trafficking in persons, sexual assault, extortion, blackmail, and worker exploitation in the United States. At the time of the NIV interview, you must confirm that a pamphlet prepared by the Department detailing this information has been received, read, and understood by the applicant. See 9 FAM 41.21 N6.5 for information about WWTVPRA enforcement and consular officer responsibilities. Consular officers must add a mandatory case note in the NIV system stating the pamphlet was provided and the applicant indicated that s/he understood its contents. b. If a B-1 personal employee/domestic applicant is eligible for an in-person interview waiver (see 9 FAM 41.102 N3) and the applicant s previous visa was issued at a time when post was adhering to the WWTVPRA requirements, post may apply the fingerprint reuse/interview waiver policies and ensure a copy of the pamphlet is returned to every issued applicant along with his/her visa. 9 FAM 41.31 N9.4 Professional Athletes (CT:VISA-1753; 10-21-2011) a. Professional athletes, such as golfers and auto racers, who receive no salary or payment other than prize money for his or her participation in a tournament or sporting event. b. Athletes or team members who seek to enter the United States as members of a foreign-based team in order to compete with another sports team should be admitted provided: (1) The foreign athlete and the foreign sports team have their principal place of business or activity in a foreign country; (2) The income of the foreign-based team and the salary of its players are principally accrued in a foreign country; and (3) The foreign-based sports team is a member of an international sports league or the sporting activities involved have an international dimension. 9 FAM 41.31 Notes Page 12 of 32
c. Amateur hockey players who are asked to join a professional team during the course of the regular professional season or playoffs for brief try-outs. The players are draft choices who have not signed professional contracts, but have signed a memorandum of agreement with a National Hockey League (NHL)-parent team. Under the terms of the agreement, the team will provide only for incidental expenses such as round-trip fare, hotel room, meals, and transportation. At the time of the visa application or application for admission to the United States, the players must provide a copy of the memorandum of agreement and a letter from the NHL team giving the details of the try-outs. If an agreement is not available at that time, a letter from the NHL team must give the details of the try out and state that such an agreement has been signed. 9 FAM 41.31 N9.5 Yacht Crewmen (CT:VISA-1777; 11-29-2011) Crewmen of a private yacht who are able to establish that they have a residence abroad which they do not intend to abandon, regardless of the nationality of the private yacht. The yacht is to sail out of a foreign home port and cruise in U.S. waters for more than 29 days. 9 FAM 41.31 N9.6 Coasting Officers See 9 FAM 41.41 N4 for aliens seeking to enter the United States as coasting officers. 9 FAM 41.31 N9.7 Investor Seeking Investment in United States An alien seeking investment in the United States, including an investment that would qualify him or her for status as an E-2 investor. Such an alien is precluded from performing productive labor or from actively participating in the management of the business prior to being granted E-2 status. 9 FAM 41.31 N9.8 Horse Races (CT:VISA-779; 10-13-2005) An alien coming to the United States to perform services on behalf of a foreign-based employer as a jockey, sulky driver, trainer, or groomer. 9 FAM 41.31 Notes Page 13 of 32
9 FAM 41.31 N9.9 Outer Continental Shelf (OCS) Employees (CT:VISA-1034; 09-24-2008) a. The Outer Continental Shelf Lands Act Amendments of 1978 (OCSLA) were enacted on September 18, 1978. 43 U.S.C. 1356 of OCSLA directs, that with specified exceptions, all units operating on the Outer Continental Shelf (OCS) must employ only U.S. citizens or lawful permanent resident (LPR) aliens as members of the regular complement of the unit. Subsequently, the U.S. Coast Guard issued regulations (33 CFR 141) which became effective on April 5, 1983. The regulations contain guidelines concerning exemptions available to units operating on the OCS. b. Not included are nonmembers of the regular complement of a unit such as specialists, professionals, or other technically trained personnel called in to handle emergencies or other temporary operations, and extra personnel on a unit for training or for specialized operation; i.e., construction, alteration, well logging, or unusual repairs or emergencies. 9 FAM 41.31 N9.9-1 B-1 Visa Applicants (CT:VISA-1365; 10-29-2009) The citizenship requirement under the Outer Continental Shelf Lands Act Amendments of 1978 (OCSLA) and the U.S. Coast Guard regulations may be waived in certain circumstances specified in the U.S. Coast Guard s regulations at 33 CFR 141. Exemptions to the OCSLA manning restrictions can be obtained from the U.S. Coast Guard, which will issue a letter of exemption for the vessel or individual(s). Based on this letter, a B-1/OCS (Outer Continental Shelf) visa may be issued for the purpose and validity specified in the letter, without the need of an advisory opinion (AO) from the Department. If an alien requests a B-1 visa to work on the OCS, and cannot satisfy that the work has been exempted by the U.S. Coast Guard, an AO request must be submitted to the Department (CA/VO/L/A) before a visa can be issued. 9 FAM 41.31 N9.9-2 Visa Notation If issuance of a visa is approved, you should annotate the visa with OCS. 9 FAM 41.31 N9.9-3 Requests for Exemption from Restrictions on Alien Employment 9 FAM 41.31 Notes Page 14 of 32
Employers who wish to employ persons other than citizens of the United States or permanent resident aliens as part of the regular complement of the unit must request, in writing, an exemption from the restrictions on employment in accordance with specific U.S. Coast Guard regulations. The request for the exemption must be addressed to: Commandant U.S. Department of Homeland Security U.S. Coast Guard (G-MOC-2) 2100 2nd Street, SW Washington, DC 20593-0001 9 FAM 41.31 N10 OTHER BUSINESS ACTIVITIES CLASSIFIABLE B-1 While the categories listed below generally may be classified under the proper applicable nonimmigrant class, i.e., A, E, H, F, L, or M visas, you may issue B-1 visas to otherwise eligible aliens under the criteria provided below. 9 FAM 41.31 N10.1 Commercial or Industrial Workers a. An alien coming to the United States to install, service, or repair commercial or industrial equipment or machinery purchased from a company outside the United States or to train U.S. workers to perform such services. However, in such cases, the contract of sale must specifically require the seller to provide such services or training and the visa applicant must possess specialized knowledge essential to the seller s contractual obligation to perform the services or training and must receive no remuneration from a U.S. source. b. These provisions do not apply to an alien seeking to perform building or construction work, whether on-site or in-plant. The exception is for an alien who is applying for a B-1 visa for supervising or training other workers engaged in building or construction work, but not actually performing any such building or construction work. 9 FAM 41.31 N10.2 Foreign Airline Employees Foreign airline employee aliens who: 9 FAM 41.31 Notes Page 15 of 32
(1) Seek to enter the United States for employment with a foreign airline that is engaged in international transportation of passengers and freight; (2) Are working in an executive, supervisory, or highly technical capacity; and (3) Otherwise meet the requirements for E visa classification but are precluded from entitlement to treaty trader E-1 classification solely because there is no treaty of friendship, commerce, and navigation in effect between the United States and the country of the aliens nationality, or because they are not nationals of the airline s country of nationality. 9 FAM 41.31 N10.3 Employees of Foreign Airlines Coming to United States to Join Aircraft Employees of foreign airlines coming to the United States to join aircraft may also be documented as B-1 visitors in that they are not transiting the United States and are not admissible as crewmen. Such applicants, however, must present a letter from the headquarters branch of the foreign airline verifying their employment and the official nature of their duties in the United States. 9 FAM 41.31 N10.4 Clerkship Except as in the cases described below, aliens who wish to obtain hands-on clerkship experience are not deemed to fall within B-1 visa classification. 9 FAM 41.31 N10.4-1 Medical (CT:VISA-1777; 11-29-2011) An alien who is studying at a foreign medical school and seeks to enter the United States temporarily in order to take an elective clerkship at a U.S. medical school s hospital without remuneration from the hospital. The medical clerkship is only for medical students pursuing their normal third or fourth year internship in a U.S. medical school as part of a foreign medical school degree. (An elective clerkship affords practical experience and instructions in the various disciplines of medicine under the supervision and direction of faculty physicians at a U.S. medical school s hospital as an approved part of the alien s foreign medical school education. It does not apply to graduate medical training, which is restricted by INA 212(e) and normally requires a J-visa.) 9 FAM 41.31 Notes Page 16 of 32
9 FAM 41.31 N10.4-2 Business or Other Professional or Vocational Activities An alien who is coming to the United States merely and exclusively to observe the conduct of business or other professional or vocational activity may be classified B-1, provided the alien pays for his or her own expenses. However, aliens, often students, who seek to gain practical experience through on-the-job training or clerkships must qualify under INA 101(a)(15)(H) or (L), or when an appropriate exchange visitors program exists (J). 9 FAM 41.31 N10.5 Participants in Foreign Assistance Act Program (CT:VISA-940; 03-24-2008) An alien invited to participate in any program furnishing technical information and assistance under section 635(f) of the Foreign Assistance Act of 1961, 75 Statute 424. 9 FAM 41.31 N10.6 Peace Corps Volunteer Trainers (CT:VISA-940; 03-24-2008) An alien invited to participate in the training of Peace Corps volunteers or coming to the United States under contract pursuant to sections 9 and 10(a)(4) of the Peace Corps Act (75 Statute 612), unless the alien qualifies for A classification. (See 9 FAM 41.113 PN11.1 for notation to be inserted on any visa issued under this legislation.) 9 FAM 41.31 N10.7 Internship with United Nations Institute for Training and Research (UNITAR) (CT:VISA-1034; 09-24-2008) Participants in the United Nations Institute for Training and Research (UNITAR) program of internship for training and research who are not employees of foreign governments. 9 FAM 41.31 N10.8 Aliens Employed by Foreign or U.S. Exhibitors at International Fairs or Expositions Aliens who are coming to the United States to plan, construct, dismantle, 9 FAM 41.31 Notes Page 17 of 32
maintain, or be employed in connection with exhibits at international fairs or expositions may, depending upon the circumstances in each case, qualify for one of the following classifications. 9 FAM 41.31 N10.8-1 Foreign Government Officials Aliens representing a foreign government in a planning or supervisory capacity and/or their immediate staffs are entitled to A classification if an appropriate note is received from their government, and if they are otherwise properly documented. 9 FAM 41.31 N10.8-2 Employees of Foreign Exhibitors Employees of foreign exhibitors at international fairs or expositions who are not foreign government representatives and do not qualify for A classification ordinarily are classified B-1. 9 FAM 41.31 N10.8-3 Employees of U.S. Exhibitors While alien employees of U.S. exhibitors or employers are not eligible for B-1 visas they may be classifiable as H-1 or H-2 temporary workers. 9 FAM 41.31 N11 ALIENS NORMALLY CLASSIFIABLE H-1 OR H-3 (CT:VISA-1753; 10-21-2011) There are cases in which aliens who qualify for H-1 or H-3 visas may more appropriately be classified as B-1 visa applicants in certain circumstances; e.g., a qualified H-1 or H-3 visa applicant coming to the United States to perform H-1 services or to participate in a training program. In such a case, the applicant must not receive any salary or other remuneration from a U.S. source other than an expense allowance or other reimbursement for expenses incidental to the alien s temporary stay. For purposes of this Note, it is essential that the remuneration or source of income for services performed in the United States continue to be provided by the business entity located abroad, and that the alien meets the following criteria: (1) With regard to foreign-sourced remuneration for services performed by aliens admitted under the provisions of INA 101(a)(15)(B), the Department has maintained that where a U.S. business enterprise 9 FAM 41.31 Notes Page 18 of 32
or entity has a separate business enterprise abroad, the salary paid by such foreign entity should not be considered as coming from a U.S. source; (2) In order for an employer to be considered a foreign firm the entity must have an office abroad and its payroll must be disbursed abroad. To qualify for a B-1 visa, the employee must customarily be employed by the foreign firm, the employing entity must pay the employee s salary, and the source of the employee s salary must be abroad; and (3) An alien classifiable H-2 must be classified as such notwithstanding the fact that the salary or other remuneration is being paid by a source outside the United States, or the fact that the alien is working without compensation (other than a voluntary service worker classifiable B-1 in accordance with 9 FAM 41.31 N9.1-5). A nonimmigrant visa petition accompanied by an approved labor certification must be filed on behalf of the alien. 9 FAM 41.31 N11.1 Incidental Expenses or Remuneration A nonimmigrant in B-1 status may not receive a salary from a U.S. source for services rendered in connection with his or her activities in the United States. A U.S. source, however, may provide the alien with an expense allowance or reimbursement for expenses incidental to the temporary stay. Incidental expenses may not exceed the actual reasonable expenses the alien will incur in traveling to and from the event, together with living expenses the alien reasonably can be expected to incur for meals, lodging, laundry, and other basic services. 9 FAM 41.31 N11.2 Honorarium Payment (CT:VISA-1034; 09-24-2008) INA 212(q) provides that a B-1 nonimmigrant may accept an honorarium payment and associated incidental expenses for usual academic activities (which can include lecturing, guest teaching, or performing in an academic sponsored festival) if: (1) The activities last no longer than nine days at any single institution or organization; (2) Payment is offered by an institution or organization described in INA 212(q); (3) The honorarium is for services conducted for the benefit of the 9 FAM 41.31 Notes Page 19 of 32